Extraordinary Rendition

Federal courts have avoided legal challenges against President George W. Bush’s construction of counterterrorism policies that included extraordinary rendition where terrorism suspects were secretly shipped to countries well-known for employing torture. The Bush and Obama administrations urged the federal courts to dismiss legal challenges to extraordinary rendition and secret detention sites arguing that they would expose “state secrets.”

But an exhaustive report from the Open Society Foundations’ Justice Initiative reveals the policies marketed as a way to protect Americans from terrorism, trampled human rights and produced fatally flawed information. Rendition, in particular, “stripped people of their most basic rights, facilitated gruesome forms of torture, at time captured the wrong people, and debased the United States’ human rights reputation world-wide,” write OSF’s Jonathan Horowitz and Stacy Cammarano about the report.

The federal government has refused to acknowledge participation in rendition and according to Horowitz and Cammarano more than 50 other governments were also involved though have refused to admit it. The initiative’s report details the brutality and senselessness of secret prisons and rendition.

In "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition," Amrit Singh, a senior legal officer of OSF’s Justice Initiative, states that “more than a decade after September 11, there is no doubt that high-ranking administration officials bear responsibility for authorizing human rights violations associated with secret detention and extraordinary rendition, and the impunity that they have enjoyed to date remains a matter of significant concern.”

But because the government has used the so-called state-secrets privilege to scuttle lawsuits challenging the constitutionality of its counterterrorism work, it has until now been difficult to discern the scope of rendition, its number of victims and other government involvement.

In the report’s executive summary, it is noted that “based on credible public sources and information provided by reputable human rights organizations, this report is the most comprehensive catalogue of the treatment of 136 individuals reportedly subjected to these operations. There may be many more such individuals, but the total number will remain unknown until the United States and its partners make the information publicly available.”

The federal appeals court decision rejecting a lawsuit brought by former prisoners charging the CIA with abducting and transporting them to secret prisons in other countries where they were tortured is garnering widespread derision as a dangerous continuation of unwieldy executive power.

In Mohamed et al. v. Jeppesen Dataplan, Inc., the full U.S. Court of Appeals for the Ninth Circuit dismissed a lawsuit lodged in 2007 on behalf of five men kidnapped by the CIA and sent to other countries for imprisonment and interrogation. The ACLU represented the men and argued that they had been tortured during their imprisonment. The Bush and Obama administrations argued that the lawsuit should be dismissed because it could uncover so-called "state secrets," undermining national security. The Ninth Circuit sided with the government, maintaining that it represented a "rare case" in which the government's claims to protect national security were stronger than considering whether human rights were violated.

The ACLU's Ben Wizner, who represented the former prisoners, said in a press release, "This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court."

The New York Times editorial board blasted the Ninth Circuit's decision, saying it "diminishes any hope that this odious practice [extraordinary rendition, where military captives are sent to secret prisons in other countries] will finally receive the legal label it deserves: a violation of international law."

The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

For discussion on the history of the government's use of the "state secrets" privilege, see an ACS panel discussion, including Wizner, here.

Maher Arar is appealing his torture suit to the U.S. Supreme Court, presenting the justices an opportunity to review the controversial "state secrets" privilege asserted by the Bush and Obama administrations. Arar's suit against the United States government stems from his 2002 arrest in New York and transfer to Syria for alleged ties to terrorism. At a prison in Syria, Arar alleges, he was tortured, interrogated and detained for almost a year.

Arar (pictured at right) is a Canadian citizen who successfully sued his government for its role in misinforming the United States about his ties to terrorism. In lower courts here, though, Arar has been rebuffed. The government's assertion of the "state secrets" privilege has barred Arar from presenting evidence necessary to the advancement of his suit.

Despite renouncing torture, the Obama administration continued to defend alleged torture perpetrators from civil liability yesterday. Before the U.S. Court of Appeals for the Ninth Circuit, the administration again invoked the "state secrets" privilege, attempting to scuttle litigation brought by persons claiming to have been victims of the Bush administration's torture program.

The plaintiffs allege that they were kidnapped and transported to CIA black sites -- a practice known as "extraordinary rendition." At the black sites, the plaintiffs assert that they were tortured in the Bush administration's pursuit of the "War on Terror." They filed suit against a Bay Area subsidiary of Boeing for helping arrange the flights on which they were transported. The Justice Department promptly intervened on behalf of the company.

"The Obama administration, following the legal strategy of its predecessor, asked the court to throw out the suit - and insisted that even the question of whether the company, Jeppesen Dataplan, was working with the government could threaten national security," reportsThe New York Times. "'We are not asking you to do anything radical here,' insisted Douglas Letter, the lawyer for the Justice Department. 'This case cannot proceed without getting into state secrets.'"

According to the San Francisco Chronicle's Bob Egelko, "Several judges noted that most of the essential facts of the case have been widely aired -- the existence of the 'extraordinary rendition' program under President George W. Bush, the five plaintiffs' accounts of their abduction and torture, and the alleged participation by Jeppesen Dataplan of San Jose," a Boeing subsidiary.

By Maj. (Ret.) Eric Montalvo, Esq., Senior Litigation Counsel at Tully Rinckey PLLC in Washington, D.C. and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law and military law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

Imagine for the moment you are walking along a sidewalk and suddenly you hear and feel an explosion. As you run for your life someone tackles you and gives you over to the police. Within hours you are hooded and handed over to a foreign power and a month later put on a plane to somewhere. The foreign power who has detained you continues to make allegations that you were somehow involved in the explosion which you repeatedly deny. The foreign power "invents" a legal process which is found to be inadequate, the second version is found inadequate as well, and they are now working on a third version. The judges, prosecutors, and most defense counsel have no experience as it relates to national security litigation and capital punishment. You are introduced and assigned to military defense counsels who wear the same uniform as the prosecutors. Men, some of whom may be totally innocent, awake every day to this indefinite detention. This is the reality of the Military Commissions system for detainees at Guantanamo Bay.

Trial by the Military Commissions does not present defendants with a meaningful opportunity to challenge the bases of their detention. Even a determination by the Commission that it does not have personal jurisdiction over a defendant, or, after trial, that the defendant should be acquitted, does not have a binding effect. The Bush Administration policy maintained a policy of indefinite detention regardless of the outcome as described by the Pentagon Press Secretary Geoff Morrell whereby he stated at a news conference, "even if he [the detainee] were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected to-subject to continued detention." It is a policy that is currently being followed by the Obama Administration and, in the meanwhile, detainees are held with no hope of release.

The primary purpose of drafting the Constitution was to limit government power. The Due Process guarantees found in the Bill of Rights were meant to empower individuals against arbitrary government action. This is a bedrock principle of American jurisprudence and is being completely ignored as a policy concern in relation to Guantanamo detainees.